Tuesday, October 11, 2011

The Limits of Conscientious Objection

By Michael C. Dorf

{N.B. I am cross-posting today on the Cornell Journal of Law & Public Policy Blog. In order to coordinate, I wrote this post a little over a week ago, before Linda Greenhouse posted on the same subject. She and I reach similar conclusions but by different routes.}
A local controversy raises some interesting
questions about the proper scope of rights to conscientious objection.
Rose Marie Belforti is the Clerk of the Town of Ledyard in nearby Cayuga
County. Citing her religious-based moral objections, she recently refused
to issue a marriage license to a same-sex couple, although she agreed (perhaps
after some discussion) to delegate the job of issuing marriage licenses to the
deputy clerk, who has no objection to issuing licenses to same-sex couples.
According to the news story, the two women who sought the marriage
license are considering possible litigation.

In this post, I want to consider two questions: 1) What distinctions should the
law draw among the substantive grounds for conscientious objection?
and 2) What counts as participation in activity deemed morally
objectionable.

1) Substantive Grounds

For people like me who favor same-sex marriage, it may be hard to sympathize
with Ms. Belforti. The fact that she finds same-sex marriage immoral
strikes us as bigotry, not much ameliorated by the fact that Belforti, like
other opponents of same-sex marriage, invokes religious scruples. After
all, Scriptural authority can be, and has been, invoked to support slavery,
collective punishment, subjugation of women, and other practices that people
like Ms. Belforti do not now attempt to rationalize. Thus, we think that Belforti
and her religious community have made a conscious choice to oppose same-sex
marriage, even while other religious communities using the same holy books have
made a choice to welcome gays and lesbians as full equals.

To be sure, the same could be said for other conscientious objector claims.
Quakers read the same Bible as other Protestant sects, but end up as
pacifists. Why then, does Belforti’s claim seem substantively less worthy
than that of a Quaker who refuses to take up arms? A big part of the
answer is that the Quaker’s pacificism is not tantamount to the view that some
members of the community are less valuable than others, while that is a fair
implication of the anti-same-sex-marriage view. Just as we would not be
comfortable recognizing a right of a Town Clerk to decline to issue marriage
licenses to interracial couples, so too here, the asserted right to
conscientious objection is weakened by the fact that it appears to be part of a
zero-sum game: Recognition of Belforti’s claim undermines the equality of
marriage of same-sex couples.

Yet seen in wide enough angle, any conscientious claim can be seen as
condemning some other people. The Quaker who refuses to fight could be
understood to be insulting people who have different scruples. A vegan
Town Clerk who objected to issuing hunting and fishing licenses on grounds that
such activities are unethical could be understood to be making a statement
about people who hunt and fish. Etc.

The difference between the Quaker and the vegan, on the one hand, and Ms.
Belforti, on the other, is that the Quaker and the vegan make tacit statements
(if at all) about members of the majority. The vast majority of
people who think war not categorically immoral and consume animal products are
not seriously threatened by the fact that a few of us oddballs hold views that
regard their conduct as unethical. By contrast, gays and lesbians are a
persecuted minority, and so the recognition of conscientious objector rights to
denigrate them stings much more sharply.

2) Participation

Even if we assume that there ought to be circumstances in which conscientious
objection to same-sex marriage should be recognized, there is an additional
worry in the Belforti case. When the law recognizes exemptions for
conscientious objectors, it typically does so for people who do not want to participate
in acts they regard as immoral. For example, conscientious objector
laws protect people from serving in the armed forces, from performing
abortions, and from having to officiate at same-sex marriages (as in New York’s
Marriage Equality Act itself).

Such laws do not protect people against indirectly supporting practices with
which people disagree, even if they strongly disagree on moral and religious
grounds. Quakers must pay taxes that support wars, just as my taxes go to
subsidies for the animal exploitation industries, despite my desire not to
participate in them.

Nor is it feasible to imagine that we could exempt everyone with a
conscientious objection to some practice from even the remotest sort of
participation in that practice. Administration of the tax code would be
enormously complicated were we to allow checkoffs for particular budget items.
And the problem does not end with taxes. A postal employee might
object to delivering an envelope containing a marriage license to a same-sex
couple or even to delivering mail containing promotional material for political
candidates she opposes.

Where does a town clerk fall on the spectrum between objecting to fighting in a
war and objecting to delivering mail for causes with which one disagrees?
I’m inclined to think that it comes closer to the latter position, and
thus that the government could legitimately enforce a rule that says that if
you want to be a town clerk, you have to issue marriage licenses to everyone
who legally qualifies.

That said, I do think we can also recognize that for people like Ms. Belforti,
that’s a real harm (albeit one that the law will not accommodate). People
will feel uncomfortable with a level of participation in what they regard as
evil at some point below the threshold that the law can recognize for
conscientious objector status.

For me personally, that point was driven home twenty years ago when, as a law
clerk at the Supreme Court, I occasionally had to sign orders denying an
application for a stay of execution, knowing that this was the last step before
a person would be executed. Of course, it wasn’t my decision to deny the
stay. I wasn’t even signing on my own behalf. (The last legal
action often takes place in the wee hours of the morning, when only law clerks
are left in the building, with the final authority coming via telephone call
with the relevant Circuit Justice.) But still, I experienced the signing
of my initials as a form of participation in capital punishment. So, even
though I do not share her values, and even though I think she should be denied
the power to opt out, I do sympathize with Ms. Belforti.

20 comments:

I too sympathize with the Ms. Belfortis of the world. But, as you say, her level of involvement is minor enough that if applied evenly, it would result in serious problems.

But, it isn't. Some oppose re-marriage after divorce and many more violate that provision but the threat to freedom of religion strangely isn't raised so much there. Why? Animus against gays? Too many targets?

In the SC case involving a ministerial exemption, the justices were concerned that some religious beliefs seemed to be given more respect. But, that happens. For instance, opposition to abortion is favored over those whose religious beliefs dictate that the most moral thing to do in certain cases is to have one. Funding rules favor the former.

Can we not all sympathize with conscientious objection? But does that really matter?

This brings to mind the comment by our former President, stating that he answered to ”a higher power.” To object for reason of religious conscious effectively places the objector into a position of elevating religious dogma above constitutional law.

After making every argument against the town clerk, Professor Dorf concludes by saying that he “do(es) sympathize with Ms. Belforti.” But this sympathy is puzzling. Consider the following hypothetical: a county clerk who truly and firmly believes in equality decides to issue marriage licenses to same-sex couples, despite the state constitutional ban on gay marriage. Here, the clerk is a conscientious objector to inequality, just like Ms. Belforti on the other end of the spectrum; and their actions (i.e., issuing and denying marriage licenses) are indistinguishable under the theory of “substantive grounds” and “participation.” But few would argue sympathy for the clerk who issues marriage licenses. Rather, most are likely to fault her for breaking the law. The same should go for Ms. Belforti. By denying same-sex couples marriage licenses to which they are entitled as a legal right in NY, Ms. Belforti breaks the law irrespective of her underlying rationales for breaking the law. Seen in this light, Ms. Belforti deserves no moral (or legal) sympathy at all.

I'm puzzled by Joe's puzzlement! It's possible to sympathize with someone without thinking that he or she is either legally or morally entitled to an exemption from a legal rule. I am also sympathetic to the person in Joe's hypothetical conscientious objector to inequality--indeed I'm MORE sympathetic to the hypothetical clerk than to Ms. Belforti, because I share the values of the hypothetical clerk.

The most I would say is that I could understand where those conscientious objectors are coming from. But I wouldn’t use the word “sympathize” in either case because that word implies an approval, accord, or agreement.

Indeed, I seriously question this whole theory of “substantive grounds” and “participation” because its logic could be easily stretched to argue against any law whose “value” people don’t share. For example, President Rick Perry could use this theory to justify an executive order dismantling the social security system because he conscientiously objects to it as a “Ponzi scheme” and refuses to participate in it.

Quakers don't join the army and refuse to kill. Vegans don't go to work in a slaughterhouse and refuse to butcher. People don't become clerks whose job it is to hand out marriage licenses to people the law says can marry and decide for themselves who ought to get them. We can, of course, be practical about it. If there's a second functionary in the office who can, with equal convenience to the applicants, hand out same-sex marriage licenses, we can, and probably should, look the other way if the clerk hands off the job.

"The difference between the Quaker and the vegan, on the one hand, and Ms. Belforti, on the other, is that the Quaker and the vegan make tacit statements (if at all) about members of the majority."

Not sure I buy this. If a Jewish or black or Asian clerk refused to sign marriage certificates for inter-religious or inter-racial marriages, I don't think their position would be much stronger, even though the disapproval would be directed toward the majority.

Also, you seem to be skipping a big part of the issue, the one that CJColucci alluded to, namely that nobody is forcing Ms. Belforti to be a county clerk. If she can't bring herself to sign gay marriages, she shouldn't be a clerk. Presumably, similar reasoning explains why you were willing, however reluctantly, to sign orders denying stays of execution, whereas you wouldn't (again presumably) vote to impose the death penalty if you were on a jury. You knew when you signed up to be a law clerk that you would have to participate in decisions to deny stays of execution. If you didn't want to do that, you could have chosen not to clerk. But one is summoned to serve on a jury. So (again putting words in your mouth) I assume that you'd feel perfectly comfortable answering in voir dire that you oppose the death penalty and would not vote to impose it in any circumstance.

Since CJ raised the point, I'm curious (reading the coverage and other analysis) why suddenly they have to schedule and all. The position here is not, to my knowledge, on call 24/7. She has limited hours. Why can't whomever she delegates to be on call those few hours? If they can't, she has to do it.

Also, I (Joe) can sympathize with people I think are wrong. I need not be in accord, agreement or approve them, except in the very broad sense that personal religious beliefs are honest compelling things to people.

She thought she found a way to balance them, as many try to do, and even if she's honestly wrong, I can sympathize with her conflict.

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